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Victory over Unconstitutional Speech Codes: San Francisco State University Settles Lawsuit with College Republicans in Favor of Free Speech

March 4, 2008

SAN FRANCISCO, March 4, 2008—Yesterday, San Francisco State University (SFSU) settled a lawsuit challenging its speech codes by agreeing to modify several unconstitutional policies to make them consistent with the First Amendment. The settlement also requires SFSU to pay damages to members of the university’s College Republicans as well as to pay the College Republicans’ attorney fees. The lawsuit—part of the Foundation for Individual Rights in Education’s (FIRE’s) Speech Codes Litigation Project—was filed in July 2007 by attorneys from the Alliance Defense Fund (ADF).

“Unconstitutional speech codes have been dealt yet another blow,” FIRE President Greg Lukianoff said. “This lawsuit and settlement send a message to university administrators everywhere that there are real consequences for violating students’ rights.”

SFSU’s speech codes had banned expression clearly protected by the United States Constitution. For example, the college’s sexual harassment policy defined sexual harassment as “one person’s distortion of a university relationship by unwelcome conduct which emphasizes another person’s sexuality.” A policy regulating student organizations had banned any conduct “inconsistent with SF State goals, principles, and policies.” In addition, the SFSU College Republicans was unconstitutionally targeted for the content of the group’s expression in 2006.

In November 2007, U.S. Magistrate Judge Wayne Brazil issued a preliminary injunction prohibiting SFSU and the California State University (CSU) System as a whole from enforcing several of the policies challenged in the lawsuit. Yesterday’s settlement permanently revises those policies and affects the more than 400,000 students enrolled in the CSU System.

While SFSU denies any wrongdoing in the settlement, the university has nevertheless agreed to make significant changes to a number of policies to address constitutional concerns about free expression. For example, SFSU is changing its definition of sexual harassment to “conduct that is sufficiently severe, pervasive, and objectively offensive as to substantially disrupt or undermine a person’s ability to participate in or to receive the benefits, services, or opportunities of the university.” It is also removing the student organization policy prohibiting conduct “inconsistent with SF State goals, principles, and policies.” The CSU System is retaining a statement urging students to be civil to one another, but it will add a disclaimer indicating that this statement cannot be used as grounds for disciplinary action against students.

ADF attorney David Hacker represented the plaintiffs in their lawsuit against SFSU. “This settlement benefits everyone who cherishes their First Amendment rights,” Hacker said.

“Every time campus speech codes have been challenged in court, they have failed. Yet unconstitutional speech codes remain the rule—not the exception—at universities across the country,” Lukianoff said. “Look for many more of these challenges in the future as FIRE continues our fight to end speech codes nationwide. Repressive speech codes have no place at our nation’s colleges and universities.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at www.thefire.org.